People v. Gonzalez

2019 NY Slip Op 7700

Opinion

People v Gonzalez (2019 NY Slip Op 07700)

People v Gonzalez

2019 NY Slip Op 07700

Decided on October 24, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 24, 2019
Friedman, J.P., Kapnick, Oing, Singh, JJ.

10193 2963/09

[*1] The People of the State of New York, Respondent,

v

Engels Gonzalez, Defendant-Appellant.

Darcel D. Clark, District Attorney, Bronx (Nicole Neckles of counsel), for appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Matthew Bova of counsel), for respondent.

Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered May 21, 2018, which summarily granted defendant's CPL 440.10 motion to vacate a January 30, 2013 judgment of conviction, unanimously reversed, on the law, and the matter remanded for a hearing in accordance with this decision.

Defendant did not fully substantiate his claim that his counsel provided constitutionally deficient advice regarding the immigration consequences of defendant's guilty plea (see Padilla v Kentucky, 559 US 356, 367-369 [2010]; People v McDonald, 1 NY3d 109, 113-114 [2003]; People v Doumbia, 153 AD3d 1139, 1140 [1st Dept 2017]), and, as such, a hearing on that issue is required (see CPL 440.30[3][c]). As to the prejudice prong of his claim, which requires proof that he would not have pleaded guilty but for the incorrect advice, a hearing on that issue is also necessary (see People v Gaston, 163 AD3d 442, 444-445 [1st Dept 2018]). We have considered and rejected both parties' remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 24, 2019

CLERK